Citation Nr: 1001423
Decision Date: 01/11/10 Archive Date: 01/22/10
DOCKET NO. 05-25 233 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUE
Whether new and material evidence has been submitted which is
sufficient to reopen a previously denied claim of entitlement
to service connection for hypertension.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Alsup, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1964 to
November 1966.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a March 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, which denied the Veteran's claim
to reopen a claim for entitlement to service connection for
hypertension. The Veteran disagreed and perfected an appeal.
In an unappealed May 1979 decision, the Board denied
entitlement to service connection for hypertension.
Issue not on appeal
In the October 2009 formal brief, the Veteran's
representative contends that the issue of entitlement to
service connection for tachycardia is on appeal to the Board.
However, a review of the Veteran's VA claims folder reveals
that the Veteran has not filed a substantive appeal regarding
that issue after the RO's October 2006 statement of the case
was issued. Thus, the issue is not on appeal and will not be
addressed any further herein. See Archbold v. Brown, 9 Vet.
App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the
filing of a notice of disagreement initiates appellate review
in the VA administrative adjudication process, and the
request for appellate review is completed by the claimant's
filing of a substantive appeal after a statement of the case
is issued by VA].
FINDINGS OF FACT
1. The Board denied service connection for hypertension in
May 1979; the Chairman of the Board has not ordered
reconsideration of that decision.
2. Evidence received since the May 1979 Board decision does
not raise a reasonable possibility of substantiating the
claim of entitlement to service connection for hypertension.
CONCLUSIONS OF LAW
1. The May 1979 Board decision that denied service
connection for hypertension is final. 38 U.S.C. § 4005 (b)
(1976); 38 C.F.R. § 19.104 (1978).
2. Since the May 1979 Board decision, new and material
evidence has not been received, and the claim of entitlement
to service connection for hypertension is not reopened.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks entitlement to service connection for
hypertension. Over the years, he has contended several
different bases for service connection. In the current
claim, he simply contends that he incurred hypertension
during his active duty service and that he is therefore
entitled to service connection. The Board notes that
separate theories in support of a claim for a particular
benefit are not equivalent to separate claims and a final
denial on one theory is a final denial on all theories. As
such, new and material evidence is necessary to reopen a
claim for the same benefit asserted under a different theory.
Robinson v. Mansfield, 21 Vet App 545 (2008); Roebuck v.
Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18
Vet. App. 470 (2004).
Before considering the claim on the merits, the Board must
initially determine whether new and material evidence has
been received which is sufficient to reopen the claim despite
prior adjudicative action by the RO which denied the claim.
See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); see also
Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).
The Board will first address preliminary matters and then
render a decision on the issue on appeal.
Duties to notify and assist
Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim and it
must assist the claimant by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West
2002); 38 C.F.R.
§ 3.159(b) (2009); see Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). The notice required must be provided to the
claimant before the initial unfavorable decision on a claim
for VA benefits, and it must (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R.
§ 3.159(b)(1) (2009).
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United
States Court of Appeals for Veterans Claim (the Court)
specifically addressed VCAA notice requirements in the
context of a veteran's request to reopen a previously and
finally denied claim. The Court found that VA must notify a
claimant of the evidence and information that is necessary to
reopen the claim, and must provide notice that describes what
evidence would be necessary to substantiate the element or
elements required to establish service connection that were
not found in the previous denial.
The Board has determined that the Veteran received proper
notice as required by the Court in Kent supra. The RO sent
the Veteran a September 2004 letter which informed him that
he was notified of a decision which denied service connection
for hypertension and that the decision was final. The
Veteran was informed that in order to reopen his claim, he
needed to present new and material evidence that
hypertension was incurred or aggravated during his active
duty service, and he was informed what constituted new and
material evidence. The Board notes that the language used in
the letter substantially follows the regulatory language of
38 C.F.R. § 3.156. See the Board's discussion below.
The September 2004 letter, along with a July 2004 letter,
provided the Veteran with notice that to show entitlement to
service connection, the evidence needed to show that he had
an injury in military service or a disease that began in or
was made worse during military service or an event in service
causing injury or disease; a current physical or mental
disability; and, a relationship between the current
disability and an injury, disease or event in military
service. The notices were sent prior to the date of the last
adjudication of the Veteran's claim in July 2005. Thus, the
Veteran had a meaningful opportunity to participate in the
adjudication of his claim. See Overton v. Nicholson, 20 Vet.
App. 427, 435 (2006).
The Veteran was not specifically informed of how VA
determines a disability rating and an effective date.
However, in light of the Board's denial of the Veteran's
claim, no disability rating or effective date will be
assigned, so there can be no possibility of any prejudice to
the Veteran under the holding in Dingess v. Nicholson, 19
Vet. App. 473 (2006).
In a claim seeking to reopen a previously denied claim, VA's
statutory duty to assist a claimant is limited. For example,
the Court has held that VA's duty to assist by providing a
medical examination or opinion does not apply to new and
material evidence claims. See Paralyzed Veterans of Am. v.
Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir.
2003) and Woehlaert v. Nicholson, 21 Vet.App. 456, 463-64
(2007). However, once a claim is reopened, statutes require
VA to make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the their claim
for a benefit under a law administered by VA, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim. See 38 U.S.C.A. § 5103A (West
2002).
In this case, as is more thoroughly discussed below, the
evidence required to reopen the claim would be evidence that
the Veteran's hypertension was made worse during his active
duty service. VA is not required by statute to provide a
medical examination or seek a medical opinion to establish
that issue. Moreover, the Board observes that VA has
obtained the Veteran's service treatment records to the
extent that they exist, and all private and VA records
identified by the Veteran which may tend to support his
claim. Accordingly, the Board finds that under the
circumstances of this case VA has satisfied the notification
and duty to assist provisions of the law and that no further
actions pursuant to the VCAA need be undertaken on the
Veteran's behalf.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2009). The Veteran elected on his August 2005 VA Form 9 not
to present evidence and argument in support of his claim at a
hearing before a Veterans Law Judge.
Analysis
Service connection - in general
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2009).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38
C.F.R. § 3.303(d) (2009).
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
Presumption of soundness and aggravation
A veteran will be considered to have been in sound condition
when examined, accepted and enrolled for service, except as
to defects, infirmities, or disorders noted at entrance into
service, or where clear and unmistakable (obvious or
manifest) evidence demonstrates that an injury or disease
existed prior thereto. 38 U.S.C.A. §§ 1111, 1132 (West 2002);
38 C.F.R. § 3.304(b) (2009).
A pre-existing injury or disease will be considered to have
been aggravated by active service where there is an increase
in disability during such service, unless clear and
unmistakable evidence shows that the increase in disability
is due to the natural progress of the disease. See 38
U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2009).
"Clear and unmistakable evidence" is a more formidable
evidentiary burden than the preponderance of the evidence
standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999)
[noting that the "clear and convincing" burden of proof,
while a higher standard than a preponderance of the evidence,
is a lower burden to satisfy than that of "clear and
unmistakable evidence"]. It is an "onerous" evidentiary
standard, requiring that the preexistence of a condition and
the no-aggravation result be "undebatable." See Cotant v.
West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4
Vet. App. 331, 334 (1993).
VA's General Counsel has held that to rebut the presumption
of sound condition under 38 U.S.C. § 1111, VA must show by
clear and unmistakable evidence both that the disease or
injury existed prior to service and that the disease or
injury was not aggravated by service. The claimant is not
required to show that the disease or injury increased in
severity during service before VA's duty under the second
prong of this rebuttal standard attaches. See VAOPGCPREC 3-
2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir.
2004).
Aggravation may not be conceded where the disability
underwent no increase in severity during service on the basis
of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38
C.F.R. §§ 3.304, 3.306(b) (2009).
Finality/new and material evidence
Board decisions are final if an appeal is not perfected.
38 C.F.R. § 20.1100 (2009). Pursuant to 38 U.S.C.A. § 5108,
a finally disallowed claim may be reopened when new and
material evidence is presented or secured with respect to
that claim.
New evidence means existing evidence not previously submitted
to agency decision makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, related to an unsubstantiated fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. See 38
C.F.R. § 3.156(a) (2009).
An adjudicator must follow a two-step process in evaluating
previously denied claims. First, the adjudicator must
determine whether the evidence added to the record since the
last final decision is new and material. If new and material
evidence is presented or secured with respect to a claim that
has been finally denied, the claim will be reopened and
decided upon the merits. Once it has been determined that a
claimant has produced new and material evidence, the
adjudicator must evaluate the merits of the claim in light of
all the evidence, both new and old, after ensuring that the
VA's statutory duty to assist the appellant in the
development of his claim has been fulfilled. See 38 U.S.C.A.
§ 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999);
Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).
There must be new and material evidence as to each and every
aspect of the claim that was lacking at the time of the last
final denial in order for there to be new and material
evidence to reopen the claim. See Evans v. Brown, 9 Vet.
App. 273 (1996).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is presumed. See Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
Factual background
The 'old' evidence
At the time of the May 1979 Board decision, the evidence
included the Veteran's service treatment records, statements
by the Veteran regarding the etiology of his hypertension,
and medical records from private and VA medical
practitioners. In essence, the evidence showed that the
Veteran had a pre-existing labile hypertension at the time of
his induction into service. Service treatment records also
showed blood pressure readings of 130/70 and a determination
his blood pressure was within normal limits during his
participation in a volunteer research study, and blood
pressure readings of 138/90 at the time of his discharge
physical.
Evidence also showed that a February 1970 blood pressure
reading was 128/80 and a conclusion that no abnormalities
were found. A May 1977 physical showed a diagnosis of
hypertension. A November 1977 VA examination report
indicates that the Veteran stated he had no particular
difficulties regarding blood pressure following his discharge
and that several months prior to the examination, he had been
refused employment due to elevated blood pressure readings.
At the November 1977 examination, a blood pressure was
reported as 170/130, and a diagnosis of essential
hypertension was made. At an August 1978 hearing, the
Veteran stated that during his pre-induction physical, he had
been informed that his blood pressure was high.
The May 1979 decision
The Board's May 1979 decision essentially determined that the
Veteran had a high blood pressure condition which was noted
upon induction and that there was no evidence that the
condition had been aggravated during service. In terms of
Hickson, supra, the Board found elements (1) and (2), a
current diagnosis of high blood pressure and a high blood
pressure condition during service were satisfied, but that
element (3), medical evidence that the Veteran's pre-existing
high blood pressure condition had been aggravated during
service, was not found.
Additional evidence
The evidence submitted since the May 1979 decision includes
numerous diagnoses of hypertension, and high blood pressure
readings in the context of medical reports regarding the
Veteran's ongoing cardiovascular medical problems. The Board
observes that the medical evidence submitted since the May
1979 decision includes reports regarding the status of the
Veteran's cardiovascular condition after the late-1981
myocardial infarction event.
The Veteran has also submitted two articles in support of his
claim. The first, received by VA in September 2004, is a
clipping from the Diabetes Forecast, October 2004 issue,
stating the then new government guideline definition of high
blood pressure (120/80 or above) and how it increases the
risk of heart attack, stroke and diabetes complications. The
second, received by VA in March 2005, is from the Diabetes
Forecast April 2005 issue entitled "White Coat Hypertension
Not So Harmless After All."
Finally, the Veteran has made several statements regarding
the etiology of his current hypertension condition. In a
November 1990 statement, the Veteran stated that he developed
labile hypertension during his participation in a "human
research experimental trials." In a September 2004
statement, the Veteran stated that since the new guidelines
for hypertension is 120/80 and all of his blood pressure
readings in service were above 120/80 that he had chronic
hypertension during service. In a statement of August 2005,
the Veteran stated that because the Board found in the May
1979 decision that he had labile hypertension during service,
he was entitled to service connection.
Discussion
As indicated in the Introduction, the Board denied the
Veteran's claim for service connection for hypertension in a
May 1979 decision which was not appealed by the Veteran.
That decision is final. See 38 U.S.C. § 4005 (b) (1976); 38
C.F.R.
§ 19.104 (1978). The Veteran now seeks to reopen his claim.
As explained above, the Veteran's claim for service
connection for hypertension may only be reopened if he
submits new and material evidence as to each and every aspect
of the claim that was lacking at the time of the last final
denial. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2009)
and Evans, supra. In this case, there must be new and
material evidence that his pre-existing labile hypertension
condition was made worse during his active duty service.
The Board has thoroughly reviewed the record and has
determined that there is no evidence regarding whether the
Veteran's pre-existing hypertension condition was made worse
during service. The articles submitted by the Veteran do not
address this issue in the least degree, nor could they; they
are generic articles which do not specifically address the
Veteran's condition. Thus, even accepted as true, they have
no bearing on the facts at issue in the Veteran's claim.
Moreover, the statements of the Veteran, to the extent that
they can be construed to address the issue of etiology, do
not address whether his hypertension condition was made
worse. Nor do they carry any probative value in
determination of whether new and material evidence has been
submitted. In Routen v. Brown, 10 Vet. App. 183, 186,
(1997), the Court again noted that "[l]ay assertions of
medical causation cannot suffice to reopen a claim under
38 U.S.C.A. § 5108." Neither do the Veteran's statements
constitute new evidence because similar statements were
considered by the Board in making the May 1979 decision. See
Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Thus, the
Veteran's statements are not sufficient to reopen the claim.
In sum, the Board finds that there is no new evidence of
whether the Veteran's pre-existing high blood pressure
condition was made worse during his active duty service.
Thus, there is no "new and material evidence as to each and
every aspect of the claim that was lacking at the time of the
last final denial in order for there to be new and material
evidence to reopen the claim." See Evans supra. In the
absence of such evidence, the Veteran's claim may not be
reopened. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000), [a veteran seeking disability benefits must establish
a connection between the veteran's service and the claimed
disability]. The benefits sought on appeal remain denied.
ORDER
New and material evidence not having been received, the
Veteran's claim of entitlement to service connection for
hypertension is not reopened. The benefit sought on appeal
remains denied.
____________________________________________
LANA K. JENG
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs